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tv   [untitled]    May 29, 2012 6:00pm-6:30pm EDT

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>> thank you for coming. my name is brian walsh. our second panel is titled unprecedented threats to american religious freedom and rights of conscious. we' gone back and forth about whether there's a question mark there and we actually want to discuss that question. are these unprecedented threats? to moderate today's fanl, we are fortunate enough to have professor jerry bradley. i'm introduce profess nar bradley and turn it over to him. he's the professor of law where he directs the national law institute and coed dits the american journal of jurisprudence. an international forum for legal philosophy. jerry is a visiting fellow at stanford university and a senior fellow of the witherspoon
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institute in princeton, new jersey. please join me in welcoming jerry bradley. >> thank you, brian, for the introduction and the opportunity to participate in this very important event. and i wish to add my note of appreciation to that expressed earlier by robby george and tom farr to all of the organizers and people responsible for this event, especially brian walsh, ed whalen, the head of the ethics own public policy. as all too many of you realize, i'm sure you know from experience, it's very difficult to be the person who immediately follows someone else to the podium who's really good. that's my lot today. and i should say, i have a standard clause in my speaking contract which says i won't follow, you know, top shelf talent. and i name three. i have a standard thing where i don't follow pope benedict xvi,
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barbara streisand or robbie george. but i did waive that for this occasion, and i'm already regretting it. there's a topic which we propose to vet to discuss here for the next hour and 15 minutes or so. whether it has a question mark or not, perhaps the key word is unprecedented. it's no secret that it's obvious perhaps that this conference arises from the confluence of con ver jans of two feelings or indentives more or less articulate, but one sense is that something is happening with religious liberty in the country that is new, perhaps dramatically different and a cause for concern. call that unprecedented. and the other sense that percolated up is that something needs to be done. so it's not just a matter of getting together for another
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talk fest, but rather to talk, and with a view to talking about what is happening, what needs to be done, what could be done effectively. so that's the genius of this whole project is that it's not just another academic celeb city gathering, but rather that but also geared to understanding the situation in america and what can be done about it. now, we do use the word unprecedented. it's not metropolitan to be provocative. it could be false. and i don't assume for a moment that everybody on this panel will agree that there's an unpress debited kind of threat to religious freedom today. and i must say that unprecedented by itself is morally neutral, right? it literally means for the first time. and there's a first time for everything. and doing something for the first time can can be find. it can get you on the david letterman show. doing something for the first time can get you into the
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guinness book of world records. an australian woman got into the guinness book because she managed to reach 45 miles an hour in a motorized toilet. we mean unprecedented, pro-vok tif title, if you will. we mean new, different, and in some sense from a moral, evaluative perspective, threatenithreate threatening diminution. so something new is happening that's threatening religious liberty or not. as i say, unprecedented can be really quite welcomed. rog beau is not the first holder of that uber distinguished chair in jurisprudence. two of his media predecessors
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were among the greatest constitutional academic lawyers in our history. a distant predecessor even went on to bigger i think thises, wood row wilson. i dare say robbie is an undprentsed tenure, because he's the first holder who has also cut a bluegrass cd and here it is. it's signed by robbie and i propose to auction it off in a silent auction. and you can't imagine woodrow wilson doing this, right? here's the basic plan. there aren't many of us. i pledge we ruthlessly enforce our time limits to 12 minute of each of the speakers. five plus myself. there's enough time remaining for what i want to allot for
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prepared remarks. i will come back and say a few words myself. the next thing on our agenda is to invite comments a among the panelists, the speakers for about 15 minutes. and then we will turn hopefully with about 25 minutes the q and a. i think we can get a lot done. i'm the person to enforce the time limits. i was a prosecutor in manhattan for several years. so i'm not tough, but i know lots of tough people. each of our speakers will speak about 12 minutes from their seats. and i will introduce each of them before each one of them speaks. and they're not necessarily
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going to speak in the order in which they're arranged, right to left or left to right. but i do wish to turn now to our speaker, hannah smith on my far left. and she is now chief counsel for the beckett fund, which many of you know is the leading, most effective religious liberty law firm in the country. hannah has a distinct -- is distinguished, and maybe has in an unprecedented way served two clerkships on the supreme court for justices tomaz and alido. a graduate of princeton and served for, i think, two years. but at least for a period of time as an lds missionary in europe. now, as i understand the rules about living and working as an lds missionary, you're pretty much on task 24/7. and one of the rules is that you don't watch tv. while you're on a mission. i take it that was hannah's lot for those two years. whether she's better or worse
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for it, she can say. but she's kind of made up for that because now she seems on intent on appearing on as many television programs as is humanly possible. and among them is fox news, hannity "the orailly factor." she's one of the leading religious liberty lawyers and she'll speak first. >> thank you. can you hear me? is this microphone on? thank you for the introduction. my joob on the panel this morning is to give you an overview to the threats of religious freedom in america today. and i'm going to do this primarily through the lens of litigation, the beckett fund for religious liberty is a nonprofit, nonpartisan litigation shot. and what we do is defend religious liberty all around the country. i'm going to talk today about a few of the recent cases, the ongoing cases that we are
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litigating to defend religious freedom today. i'm going to focus my remarks to three threats. those threats are first is the government mandate that forces religious institutions to act contrary to their conscious, secondly the threat to autonomy of religious organizations to rooz their own leaders and thirdly, threats to the right of conscious for individual professionals. given the headlines this week, i thought i would start with the hhs mandate. that's a threat to religious freedom in our country from government mandates that require religious individuals and institutions to provide prescriptions. the main goal of the mandate is not as hhs claims to protect women's health, rather it is a move to conscript religious organizations into a political agen agenda. so let's just make sure we're all on the same page here today,
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about what this mandate is, how it was constructed and how it will play out. the mandate requires all group health plans, every lawyer that offers a health plan to offer birth control and aborpgss as well as counseling about services as well. there's a religious employer exemption and you have to satisfy all four prongs of that exemption. i'm sure it's one of the narrowest exemptions to date in federal or state law. first of all, you have to be a nonprofit ditty, exempt not only from paying taxes but also filing a tax return. you also have to inculcate religious values as your primary purpose and an entity that primarily employs and serves people of your own faith. many organizations includingle
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skoos, hospitals, charitable service organizations are not going to meet this definition and therefore are not going to be exempt from this regulation. >> i would remind all of us, exceptions are not new new. our country has a very long history of exempting religious dlooefrs from actions that violate their conscious. some include exemptions for quakers who couldn't fight in the military, those who kdn't work on certain days of the week, those who couldn't pledge allegiance to the flag. so we have this long tradition and long history of recognizing that religious conscious is something sacred and we need to provide exemption from laws to protect it.
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i want to break that down a little bit and talk about why that's false. there are some states, about 28 that have passed contraception mandates. but the ned ral mandate is broader in scope and narrower in exemption than all the other laws. 19 of them have an exemption. and those 19 states with an exemption, only three of those actually define their exemption as narrowly as the federal one here 37 but even in those three states, there is the opportunity for religious organizations to opt out through self-ensuring or not covering prescription drug benefits. so even in the states where there are very narrow exemptions like the federal one, there is an option for religious organizations to be able to opt out. and even in states where there's a contraception mandate, there again is the same opportunity to
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opt out through self-insurance or through not covering prescription drugs in the plan. so the federal mandate permits none of these optout kpopgss. that's why it's less protective of religious freedom. so again, the assertion we heard repeatedly in the news that the if federal mandate simply does what states have already done is simply false. so what's the penalty for noncompliance? if a religious organization doesn't comply, they will be forced to stop providing their health insurance and issued a penalty of roughly $2,000 per employee the first year, with penalties increasing in subsequent years. these cribling fines are designed with a coerercive inte. we heard a lot about a compromise in the news recently and much has been talked about about this compromise. but was it really a compromise? let's just talk about what happened in .january and february oof this year. in january, there was an announcement made by the department of health and human
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services that there would be no change at all to the exemption, but rather they would give religious organizations with an objection an additional year to comply with the mandate. this set off a firestorm. although the fwresz conference sound like a compromise had been struck, all the administration did was finalize the rule without change in the federal register and finalize the exemption again without change in the federal register and left intact all of the provisions and made no change to the exemption at all. so what was announced during the february press conference were two promises. the first was enforcement of the mandate would be delayed by a year, presumably so the government could proo mull gait its next promise. and the second promise was that in a rule yet to be developed, insurance companies, not religious organizations would be forced to pay for abortion-inducing drugs,
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sterilization contraception instead of the religious organization. first, anyone who understands economics knows that insurance companies are not going to offer these services for free. rjs religious employers will still be paying for these services against their conscious with the cost spread through higher insurance premiums through their employees. some argued that insurance companies woulz offer these for free because it would help their bottom line. but if thamp the case, why aren't they already doing it? if it really produces costs to employers, economic pressure would have already solved this problem. the second problem with the so-called proms in the compromise are that hundreds if not thousands of religious organizations have self-insured plans. and that means they are the insurance company. the new compromise offers them nothing. many became self-insured because
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if you are, then you're except. and third, there's no rule that for-profit individuals will have their liberty protected at all. we did see an advanced notion of rule making issued to pro-mull gay this so-called compromise insurance rule and lays out several ideas, sort of a practice in public brainstorming, if you will, to fund the insurer mandate. but ul of these fro propose sals have been analyzed by experts in the field and they have serious practical and moral flaws. i might add a major insurance company has already caused the proposed insurance mandate unworkable and invisible. so today we stand no closer to a remedy to the serious infringement on religious freedom than before the press conference was held and the compromise is really a hollow
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promise. we began the lawsuits challenging this mandate last fall when we launched a lawsuit here in d.c. we've added three since then and as of earlier this week, there are now a total of 23 lawsuits spread throughout 15 states including the district of columbia that represent over 55 plaintiffs challenging this lawsuit in federal district supreme court. there are three for-profit companies among those and three catholic institutions which i think is vitally important. this is not just a catholic issue. this affects people of all faiths. a couple of final observations and then i'll move on quickly to my last two threats temperature this notion there's a religious war on freedom flies in the faith of recent polling. if you look at a new york times/cbs poll conducted in march, which was during the real firestorm, if you look at the statistics for women in that
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poll, women actually sided with the argument that there should be exemptions for employers that have conscientious objections to the mandate. the statistic was for any emp y employer, whether religious or not, they should get an exemption. if you look at the next one, religiously affiliated employers like schools and hospitals should they get an exemption? 53% of women favored an exemption in those employers versus 38 who opposed. 32 to 38. so this idea that women rp opposed to exemptions to this mandate is not borne out in polling numbers. and if you look at statistics from men and women combined they're even more compelling. for any employer, religious or not, they should get a an exemption. 51%. and for religious employers, it
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was even higher. my last observation on the hhs mandate is this notion that the government is actually considered all of the interests involved and struck an appropriate balance, which we've heard them say in various documents is also difficult to believe. that is because the secretary herself under oath has acknowledged, admitted she did not consult constitutional precedence and she asked for no legal advice from the justice department. now, it's just really shocking for anned a mislike this, there was no memo prepared about the constitutional mandate for religious freedoms. despite the fact that hhs received thousands of comments from religious groups warning of the illegal fi of the man dgs date before it was nienlized. the secretary said i'm not a lawyer. i think michael gerskin, a
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former bush speech writer said it best, the only thing worst than indifference to religious liberty is casual ignorant indifference to religious liberty temperature i'm going to focus on the religious liberties of churches in choosing their own leaders. here, i'm referring to the ho san that tai boar case decided in unanimous fashion in january. i should mention we along with professor dog lacock of uva represented tabor in this case. here we saw an unpriested attack on the right of autonomy for churches to choose their own leaders. for 40 year, the federal courts recognized a ministerial exception to the federal anti-discrimination laws that allowed religious organizations to be free to choose their
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leaders as they saw fit .. the solicitor general came in and argued before the supreme court that there should be no ministerial objection at all. it became clear in oral argument the majority of the justices rejected this extreme position. their second line of attack was even more interesting because they said well, even if there's a ministerial exception, it should be limited only to those employees who perform exclusively religious functions. it was quite funny to hear the chief justice's response to that. his response was this. he said that can't possibly be the test. the pope is the head of the state carrying out sectarian
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functions. the court rejected both of these extreme arguments, calling them extreme, remarkable and untenable. they held it protects broadly the right of churches to pick their leaders free of judicial intervention. the third thread is those requirements that are imposed on students and health care workers and other professions to for example certain acts that violate their conscious. here there are many examples of this. i will just name the few. religious pharmacists who are required by state laws to provide abortion-inducing drugs. religious nurses who are forced to assist in performing late-term abortions or risk losing their jobs. religious graduate students are threatened with expulsion if they don't council homosexual viebts and religious government clerks forced out of a job because they can't in good
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conscious sign marriage certificates on behalf of homosexual couples. i want to talk about a case we prevailed in in washington state. many of you may be familiar with this case. it involves religious objections to dispensing abortion-inducing drugs. we represented in that case two pharmacists, two women when were religious pharmacists and a four generation family-owned pharmacy who did not want to choose between their profession and their faith. in that case, the washington state board of pharmacy protected the conscious of pharmacy workers which permitted them to recommend to nearby pharmacies. but the board of pharmacy reversed course and even though the board admitted they found no evidence that anyone in the state had been unable to find a drug they needed because of the religious objection of any pharmacist, notwithstanding that
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lack of evidence, they issued a regulation that require these pharmacists to stock and dispense medication even if it violated their conscious. and this, even though there were exceptions from this rule for other secular reasons and other commercial reasons. if they didn't want to stock the drug because it had a short life, or if they didn't want to stock the drug for other reasons, that was just fine. but if it was for a religious reason, that was unacceptable. they had to choose between their job and their faith. one had already lost their job and the other was threatened with losing their job as well. fortunately this district court j uj in tacoma washington held these regulations violated the first amendment. we continued to represent these pharmacists on appeal. itted to end but saying there are many other threats out there to religious freedom. many are documented through the right of american freedom
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document thwere demonstrated today. others include attempts to scrub out all references to religion in the public square. and others also include redefinition of anti-discrimination laws that lack robust protections to religious freedom. i hope you see the threats are growing in intensity and severity but we're confident the rule of law will continue to stave off these attacks to our precious religious freedom. thank you very much. >> thank you for the presentation and all the good work that you and ohs at the beckett fund do. donald landry is chief of medicine and physician in chief at columbia university
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presbyterian hospital. you can read a little bit more about john landry in the conference brochure. if you're sitting in front of the computer and you google him and have about a half ho you are, you can read the rest of john's cv. you may not do that, but i have. you'll discover if you do that john subpoena amazingly and perhaps uniquely accomplished. he has a publication and research record that would be with an accomplished mid career scholar. i think don to an amateur eye has done amateur research into cocaine addiction. at the same time he has done that, he's ascended to the pinnacle or near the pinnacle of the practice of medicine by hoildholding the distinguished positions that he does at columbia presbyterian. he's also the holder, or co-holder of ten u.s. patents. and among his other
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accomplishments is membership in one club that i do raise an eyebrow about. don landry entered the salt and water club. i don't know what that is. i do know what salt water is and i was once a member of the scotch and water club, but this one really stumps me. so don if you would take that up among other things. >> so many of the threats that you're hearing about have a medical aspect to them. i suppose that's why i'm here. but i would like to limit my comments to the profession of medicine and to the aspects of that profession related to rights of congress and religious freedom. if you think about medicine over the past few decades, we're witnessing the culmination of
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the decades long process. it's a process, not a conspiracy, but a process that has the net efrkt to marginalize and suppress if not substantially eliminate those who dot not subscribe oto what president george called the predominant ideology. more specifically, those who do prescribe to traditional religious and moral values. the result of this very substantial ideological purification, and it really is that. you know, we hear about the ideology of the elite press or of college professors. this process is far advanced in medicine. it's of interest to you, not just a broad theoretical interest, but the broader population is going to have an interest at the practical level. if you think about your
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physician, unless you die in your sleep or get hit by a truck or miraculously free of illness throughout your life, you come up against medical profession. you would like that profession to have some grounding in moral values that resonate with yours. at least vaguely. and we know the situation where well over 80% have shifted to one side of the debate. there are disciplines, surgery for one, in which traditional values might be even more highly expressed. it would certainly also be the case at an ob-gyn bids almost entirely off to the extreme ideological left. and many such a situation, dissent is highly suppressed. one of the things i worked on was an an tern tif method for generating human embryonic stem cells. and it was a 34e9 thod that

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